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B.C. Attorney General David Eby responds to questions during a news conference after a court ruled that the province cannot restrict oil shipments through its borders, on Friday May 24, 2019.THE CANADIAN PRESS/Darryl Dyck

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Moments after the B.C. government lost its latest engagement to stanch the flow of heavy bitumen over the Rockies, Attorney General David Eby was surveying the next battleground.

Unbowed, Eby said the government remains opposed to the twinning of the Trans Mountain pipeline and surrender was too high a price to pay because of the potential cost of a “catastrophic undiluted bitumen spill.”

“We disagree with the decision and we’re disappointed by it,” Eby said after the 5-0 thrashing from the province’s high bench.

In a dense 65-page ruling Friday, a unanimous five-justice division of the B.C. Court of Appeal told the province it had no jurisdiction to enact legislation that would restrict the contents of a federally regulated pipeline.

Eby said he will ask the federal government to help expedite a hearing before the Supreme Court of Canada because protecting the coast and environment was so important — though the victorious Liberal administration originally refused to refer the case directly to the SCC.

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“The province has a right to appeal,” the Attorney General emphasized. “We always said it should be before the Supreme Court. We believe we need clarity on this.”

To end an escalating trade battle last spring, the B.C. NDP government referred three constitutional questions to the Court of Appeal about the validity of the proposed law prohibiting the transportation of hazardous substances without a permit.

But only one substance was targeted — heavy oil, including blended bitumen and heavier forms of crude.

The appellate panel concluded the TMX pipeline — formerly owned by Kinder Morgan until it was purchased last May by Ottawa for $4.5 billion — and its expansion was a project that “affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole.”

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The proposed “environmental protection” law was not necessarily a “smokescreen” to hide B.C.’s real aim — choking the pipeline — “but the practicalities cannot be ignored,” Justice Mary Newbury wrote, supported by Chief Justice Robert Bauman and the other justices:

“This can hardly be described as an ‘incidental’ or ‘ancillary’ effect.”

The federal government and Alberta argued the law was nothing but sleight-of-hand to delay or prevent the construction of the $7.4 billion pipeline from Edmonton to tidewater at Burnaby.

In the 2017 B.C. election campaign, the NDP said it would use “every tool in the tool box” to block the project.

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During five days of hearings in March, however, the government insisted it did not intend to halt the project nor to restrict the existing volume of heavy crude — only to prevent any increase.

“Turns out B.C.’s tool box was more Fisher Price than DeWalt,” crowed ex-Alberta Premier, now NDP opposition leader Rachel Notley after the decision.

“Alberta’s oilsands have helped build this country and todayis a good day for people with tool boxes all across Canada.”

Steel pipe to be used in the Trans Mountain pipeline expansion on rail cars at a stockpile site in Kamloops, B.C.Dennis Owen/Reuters files

B.C. Liberal leader Andrew Wilkinson piled on: “The NDP needs to finally start respecting our constitution and listening to the people rather than making up rules to please their activist friends and insiders.”

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While provinces have the authority to enforce environmental protection laws, Ottawa said they didn’t have the right to ban a product outright moving via a federally approved pipeline or railroad.

Newbury dismissed Victoria’s argument that it had jurisdiction to pass the law because provinces constitutionally have power over property and the proposed law was intended to protect the environment — property.

“(W)hile the provincial head of power is broad, the authorities do not support a superior or presumptive claim to jurisdiction for the provinces by reason of the role of ‘property’; nor do they support the notion of absolute and unqualified jurisdiction,” Newbury said.

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Even if it were not intended to “single out” the TMX pipeline, Newbury maintained the law “has the potential to affect (and indeed ‘stop in its tracks’) the entire operation of Trans Mountain as an interprovincial carrier and exporter of oil …

“Such legislation does not in its pith and substance relate to ‘property … in the province’ or to ‘matters of a merely local or private nature,’ but to Parliament’s jurisdiction in respect of federal undertakings under s. 92(10) of the Constitution Act.”

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It is unlikely that the high court will read the constitution differently, especially given the doctrine of federal paramountcy.

In rejecting the province’s authority to pass the law, Newbury said she did not need to answer the remaining reference questions: would the law be applicable to interprovincial undertakings and if so, would existing federal law render all or part of it inoperative because of paramountcy.

Nevertheless, the Federal Court of Appeal quashed the pipeline project’s approval last summer because Ottawa failed to properly consult with First Nations.

But it has until June 18 to complete those talks and reaffirm the project.

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LISTEN: Why aren’t taxes part of an inquiry into skyrocketing gas prices? What’s the latest in the latest standoff between teachers and the provincial government? Mike Smyth and Rob Shaw break down the latest B.C. political news.

Five takeaways from the Court of Appeal ruling on B.C.’s pipeline law

The British Columbia Court of Appeal ruled Friday that the province did not have the authority to restrict shipments of diluted bitumen through its borders. Here are five takeaways from the decision and its impacts:

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While the B.C. government did not dispute that the federal government was responsible for cross-boundary infrastructure projects, it argued that it should also be allowed to bring in legislation to protect its lands and waters from the environmental risks. The court disagreed, ruling the proposed legislation interfered with federal government’s powers and that the National Energy Board is the body entrusted with regulating the flow of resources across Canada.

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2. The court found B.C.’s legislation was aimed directly at the Trans Mountain pipeline expansion.

B.C. argued that its proposed legislative amendments were meant to protect its environment, while the federal government and Alberta argued the goal was to block or delay the Trans Mountain project. Justice Mary Newbury wrote on behalf of a five-judge panel that the proposed amendments were targeted at one substance, heavy oil, in one interprovincial project: the Trans Mountain expansion.

3. B.C. still wants to take its chances before the Supreme Court of Canada.

Although the panel unanimously agreed that the proposed legislation was unconstitutional, B.C. still plans to appeal to the highest court. B.C. Attorney General David Eby said his government originally wanted to take the case straight to the Supreme Court, but the federal government declined to co-operate and so B.C. had to first file it in the provincial Appeal Court. He said the Supreme Court of Canada has overturned unanimous B.C. Appeal Court decisions in the past.

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4. Alberta Premier Jason Kenney and former premier, Rachel Notley, are celebrating the decision as a win for the province.

Kenney said he hopes the B.C. government will respect the rule of law and end its “campaign of obstruction,” adding that the project would be a “win-win” for both B.C. and Alberta in creating jobs and increasing the flow of natural resources. Notley, now leader of the NDP Opposition, said she used a ban on B.C. wines last year to “force” the province to take the reference case to court. “Turns out B.C.’s toolbox was more Fisher Price than DeWalt,” she said, referring to B.C. Premier John Horgan’s statement that the government would use every tool in the toolbox to protect the coast from a potential spill.

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5. It’s unclear how many tools are left in B.C.’s toolbox to fight the project.

Eby did not directly answer a question about what else his government would do to oppose the pipeline, as he maintained B.C.’s legislation was about protecting its environment and that the Supreme Court of Canada would have the final say. But Peter McCartney, a climate campaigner with the Wilderness Committee, said there was plenty B.C. could do to halt or delay the project, including adding conditions to its provincial environmental certificate or ordering a public health and safety review of the project.

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